Alaska Dept. of Environmental Conservation v. EPA, 540 U.S. 461, 8 (2004)

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Opinion of the Court

Justice Ginsburg delivered the opinion of the Court.

This case concerns the authority of the Environmental Protection Agency (EPA or Agency) to enforce the provisions of the Clean Air Act's (CAA or Act) Prevention of Significant Deterioration (PSD) program. Under that program, no major air pollutant emitting facility may be constructed unless the facility is equipped with "the best available control technology" (BACT). As added by 165, 91 Stat. 735, and amended, 42 U. S. C. 7475(a)(4). BACT, as defined in the CAA, means, for any major air pollutant emitting facility, "an emission limitation based on the maximum degree of [pollutant] reduction . . . which the permitting authority, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for [the] facility. . . ." 7479(3).

Regarding EPA oversight, the Act includes a general instruction and one geared specifically to the PSD program. The general prescription, 113(a)(5) of the Act, authorizes EPA, when it finds that a State is not complying with a CAA requirement governing construction of a pollutant source, to issue an order prohibiting construction, to prescribe an administrative penalty, or to commence a civil action for injunctive relief. 42 U. S. C. 7413(a). Directed specifically to the PSD program, CAA 167 instructs EPA to "take such measures, including issuance of an order, or seeking inof California, Richard Blumenthal of Connecticut, G. Steven Rowe of Maine, Thomas F. Reilly of Massachusetts, Michael A. Cox of Michigan, Peter W. Heed of New Hampshire, Peter C. Harvey of New Jersey, Eliot Spitzer of New York, Hardy Myers of Oregon, Patrick C. Lynch of Rhode Island, and Peggy A. Lautenschlager of Wisconsin; for Environmental Defense et al. by Sean H. Donahue; and for the Native Village of Kivalina, Alaska, by Michael J. Frank and Peter Van Tuyn.

Briefs of amici curiae were filed for the Center for Energy and Economic Development by Paul M. Seby; and for the Northwest Environmental Defense Center by Donald B. Potter.

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